Cook v. Paducah Recapping Service

694 S.W.2d 684, 1985 Ky. LEXIS 230
CourtKentucky Supreme Court
DecidedMay 23, 1985
StatusPublished
Cited by24 cases

This text of 694 S.W.2d 684 (Cook v. Paducah Recapping Service) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Paducah Recapping Service, 694 S.W.2d 684, 1985 Ky. LEXIS 230 (Ky. 1985).

Opinions

VANCE, Justice.

The question is whether a worker who has sustained a work-related functional impairment to the body as a whole which does not result in any occupational disability under the standards set forth in K.R.S. 342.-620(12) and in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), is entitled under K.R.S. 342.730(l)(b) to an award based solely upon his functional impairment.

This is an appeal, transferred directly to this court, from a judgment of the McCracken Circuit Court which affirmed an award of the Workers’ Compensation Board.

The appellant, Richard Cook, alleges that he sustained a work-related injury to his back resulting from frequent bending and heavy lifting required by his job. Two physicians testified that their examination revealed no impairment to the body as a whole. They made no mention of whether their testimony was based upon the American Medical Association “guides to the evaluation of permanent impairment” 1977 edition referred to in K.R.S. 342.730(l)(b).

Another physician testified that his examination, using the American Guidelines for evaluation, revealed a 13% permanent impairment to the body as a whole.

Appellant contends the testimony as to the 13% permanent impairment to the body is uncontradieted for the reason that the doctor who found this impairment used the guidelines required by the statute, and even though two other doctors found no impairment, they did not indicate they used the American Medical Association guidelines as a standard for their evaluations.

The Workers’ Compensation Board determined that appellant had not sustained an injury of appreciable proportions and had not sustained any occupational disability as defined in K.R.S. 342.620(12). The Board made no findings relating to functional impairment and made no award of benefits based upon functional impairment.

Appellant contends the Board was required to find that appellant suffered a 13% functional impairment and was required by K.R.S. 342.730(l)(b) to award benefits because of the functional impairment. It is not necessary for us, at this time, to consider appellant’s contention that the Board was required to find some percentage of permanent functional impairment because, even if that is so, the Board could not award benefits to appellant unless he had sustained some occupational disability.

Prior to the decision in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), the award of benefits for permanent partial disability was determined, in large measure, on the basis of the extent the worker was disabled from performing the work he was customarily able to do.

Osborne v. Johnson, supra, shifted the focus to a determination of loss of “earning capacity” and mandated that workers’ compensation awards be based upon occupational disability.

“[2] We start with acceptance of the proposition that ‘disability’ as used in the workmen’s compensation law means occupational disability as distinguished from functional disability (mere bodily impairment).
[686]*686“[3] If occupational disability is the basis for compensation and if, as seems clear, it means impairment of earning capacity, it would seem that all that need be determined in a compensation case, as concerns disability, is: To what extent has the injured workman’s earning capacity been impaired? And it would seem that this would involve only these determinations: (1) What kind of work normally available on the local labor market was the man capable, by qualifications and training, of performing prior to injury; (2) what were the normal wages in such employment; (3) what kind of work normally available on the local labor market is the man capable of performing since his injury; and (4) what are the normal wages in such employment?
“[4-6] Under the foregoing concept medical percentages are not determinative. The real question is: How much less money can the injured workman command in the labor market? The doctors’ testimony should be addressed to the question of what job requirements the injured man is physically capable of performing (taking into consideration his qualifications and training). The board’s determination of the extent to which the man’s earning capacity is impaired then should be made on the basis of evidence as to the existence, in the local area or region, of regular employment opportunities for the type of work the medical testimony shows the man is capable of performing, and the prevailing wage rates in such employment.
“[7] If the board finds that the workman is so physically impaired that he is not capable of performing any kind of work of regular employment, or if the board finds that regular employment in the kind of work the man can perform is not available on the local labor market, the man will be considered to be totally disabled. Otherwise he will be considered to be only partially disabled. And the percentage of his partial disability will be determined by the ratio of the prevailing wage rates in the kind of employment available to him, to the wage rates earnable by him before being injured.
“It will be noticed that in the rule here outlined no significance is given to the workman’s usual occupation other than that the wages earned by him in that occupation before injury are a factor in determining his pre-injury wage capacity for comparison with his post-injury wage capacity.”

Osborne, supra at 802, 803, 804.

In 1972, the General Assembly amended the workers’ compensation statute and defined “disability” as follows:

“(9) ‘Disability’ means, except for purposes of subsection (l)(c) of Section 14 relating to scheduled losses, a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employe is customarily able to do, in the area where he lives, taking into consideration his age, occupation, education, effect upon employe’s general health of continuing in the kind of work he is customarily able to do, and impairment or disfigurement.”

Acts of the General Assembly, 1972, Chapter 78, § 2.

In 1972, the General Assembly also enacted K.R.S. 342.730 providing income benefits for disability.

“(b) In all other cases of permanent partial disability, including any disfigurement which will impair future usefulness or occupational opportunities of the injured employe, or employe disabled by an occupational disease, compensation shall be determined according to the percentage of disability,

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Cite This Page — Counsel Stack

Bluebook (online)
694 S.W.2d 684, 1985 Ky. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-paducah-recapping-service-ky-1985.